EPA Risk Management Plan Revisions

On December 21, the Administrator of the Environmental Protection Agency (EPA) signed the Final Rule revising the EPA’s Chemical Accident Prevention regulations, generally known as the Risk Management Program (RMP). These rules were mandated by the 1990 Clean Air Act amendments that regulate emissions of hazardous air pollutants (42 U.S.C. § 7412), and the rules are located at 40 C.F.R. Part 68. The EPA is authorized by law to prevent and respond to the accidental release of “regulated substances” by stationary sources by promulgating appropriate regulations which recognize “differences in size, operations, processes, class and categories of sources.” EPA’s list of regulated toxic and flammable substances and their threshold quantities is located at 40 C.F.R. § 68.130. The latest revisions to the RMP rules respond to Executive Order 13650, and a number of recent serious releases of hazardous air pollutants (HAP) from HAP storage facilities.

EPA published a Notice of Proposed Rulemaking on March 14, 2016, seeking comment on the many changes the agency believed would address the issues created by these releases and the response by state and federal authorities. These latest revisions will become effective sixty days after their publication in the Federal Register, which should take place in the next few weeks.

In the lengthy prepublication copy of these new rules, which has been made available by EPA, the agency states that the purpose of the rulemaking is to improve safety at facilities that use and distribute hazardous chemicals. Accordingly, the EPA has made several changes to the existing accident prevention program requirements, enhanced the emergency response requirements, and improved the public availability of chemical hazard information.

More specifically, the existing Accident Prevention Program has been amended to require that all facilities with “program 2 or 3 processes” must conduct a “root cause analysis” as part of any investigation of a catastrophic release. In this way, the underlying causes of the accident can be addressed and corrected.

In addition, these facilities must contract with an independent third party to perform a compliance analysis after the facility has experienced an “RMP reportable” accident. Also, many covered facilities will now be required to conduct a “safer technology and alternatives analysis and evaluate the practicability of any “inherently safer technology” as part of the process hazard analysis.

The Emergency Response rules (located at Subpart E of 40 C.F.R. Part 68) have been enhanced. Many regulated facilities will be required to “coordinate” with the local emergency agencies on an annual basis to ensure that those agencies are aware of the regulated substances located at the facility, and to conduct annual notification exercises.

There are also requirements to conduct field exercises and tabletop exercises.
EPA has added new requirements to enhance the public availability of chemical hazard information (Subpart H of 40 C.F.R. Part 68). All facilities must provide certain basic chemical data to the public, upon request. Also, the rule requires all facilities to hold a public meeting for the local community within 90 days of a reportable RMP accident. If an owner or operator asserts that the requested information required to be made available is confidential business information, then a “sanitized version” of the CBI must be provided.

Briefly, What Has Changed

• The regulatory definitions located at 40 CFR § 68.3 now include new definitions for “active measures,” “CBI,” “inherently safer technology,” “passive measures,” “practicability,” “root cause,” and “third party audit.”
• The rules establish a multitude of new reporting and analytical requirements, which must be carefully scrutinized. For example, the training rules of 40 C.F.R. § 68.48 have been supplemented to include a new requirement for “refresher training.”
• 40 CFR §68.59, “Compliance Audits,” has been revised, including a new provision that third-party audits be completed in accordance with regulatory deadlines.  The audit must be provided by the owner or operator of the facility to the board of directors or the audit committee immediately upon completion. It should be noted that the final rule does not contain the proposed provision that would exempt such audit reports from the evidentiary protections of the attorney-client privilege.